STATE OF U P Vs. CHANDRAPAL

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) Challenge in this appeal is to the judgment of the Division Bench of the Allahabad High Court directing aquittal of two respondents - Chandra Pal, son of Jagannath and Jagannath, son of Gajju, who faced trial for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short IPC ) so far as Respondent No. 1-Chandra Pal is concerned, and Section 302 read with Section 34 IPC so far as Respondent No. 2 is concerned. It is to be noted that Respondent No. 2-Jagannath died during the pendency of the appeal and, therefore, the appeal has abated so far as he is concerned.

(3.) The prosecution story in brief is that the deceased of this case was Bodhi. He was instrumental in getting Siyapati daughter of his maternal uncle married to accused Chandra Pal. However, accused persons were not satisfied with the dowry given in the marriage and therefore, they were treating Siyapati with cruelty and ultimately turned her out of the house. Deceased Bodhi took up the cause of Siyapati and he convened a panchayat on her behalf. The panchayat was held in the morning of 3.7.1979 and it was decided therein that accused Chandra Pal should maintain Siyapati and keep her with him and he will also pay Rs. 2500/- to her. A joint affidavit of Siyapati and Chandra Pal on a five rupee stamp paper Ext. Ka. 6 was also executed. Both the accused persons felt highly aggrieved on account of the action taken by the deceased Bodhi and they considered him to be their thorn. Therefore, with a view to eliminate him, both the accused persons came to village Mardariyapur in the night between 3rd and 4th July, 1979. At that time the deceased was sleeping underneath his Chhapper. Appellant Chandra Pal was armed with a country made pistol while Jagannath was having a "Karauli", a sharp cutting weapon. Accused Chandra Pal fired at Bodhi which struck him and he fell down on the ground from the cot, on which he was sleeping. As soon as Bodhi tired to get up. Chandra Pal accused fired another shot at him which also struck him and he fell down on the ground and died instantaneously. Gaya Deen-P.W.1 husband of younger daugher of Bodhi was also sleeping at a little distance at the same place while Indra Pal P.W.6, a child aged about 11-12 years was also sleeping along with Gaya Deen on the same cot, as he used to sleep daily along with the deceased Bodhi. These persons witnessed the incident so also Jodhi, P.W.-2, brother of deceased Bodhi. When Jodhi advanced to the rescue of Bodhi he was given two blows of "Karauli" by appellant Jagannath, one on abdomen and other on chest whereby he also sustained injuries. On the alarm raised by injured and other witnesses, Smt. Dhirajya as well as Smt. Sia Dulari wife of Gaya Deen, Jiya Lal, (P.W.5) and Hori Lal were attracted to the scene of occurrence, but before their arrival assailants took to their heels. Assailants were identified in the light of burning lantern as well as in the flash light of torch. Gaya Deen-P.W.1 did not report the matter to police for whole of the night. However in the morning he reached police station Ghazipur at 8.00 A.M. and dictated oral report Ext. Ka.1. Case was registered and investigation was taken up. The investigating officer reached the place of occurrence, held inquest, collected blood stained earth and plain earth and prepared site plan Ext.Ka.17. He also found an empty cartridge and a "tikli" at the scene of occurrence which he took into his custody through memo Ext.Ka. 12. Torches of Hori Lal and Jiya Lal were also examined. The complainant also produced the lantern which was said to be burning at the time of incident and the same was found to be in working order. The lantern then was given back in the custody of Smt. Dhirajya wife of the deceased through a memo. Accused Jagannath was arrested on 6.7.1979 in presence of witnesses and said accused stated before the investigating officer that he could get recovered the "karauli" with which he had caused injuries to Jodhi and thereafter the said accused led the police party to the field of Ram Swaroop and then took out "karauli" by digging out the southern-western corner of the field. "Karauli" was kept in a sealed bundle and is alleged to have been sent to chemical examiner, but no report of chemical examiner was placed on record of the trial court by the prosecution. On conclusion of investigation both the appellants were charge sheeted.